Berg v. Allied Security, Inc.

JUSTICE FREEMAN, specially concurring:

In his dissent, the Chief Justice recounts the history of this case during the appeal to this court and states:

“Subsequent to our [July 1, 1999] decision, the defendants, Allied Security, Inc., and Podolsky & Associates, Inc., each petitioned our court for rehearing. Neither of their petitions raised any new matters, and our court properly voted to deny rehearing. Subsequent to that vote, however, Justice Freeman announced that he no longer agreed with the majority’s opinion in the case and believed that rehearing should be allowed. Once rehearing was allowed, Justice Freeman changed his position and joined the three original dissenters in the case. The result is today’s disposition.” 193 Ill. 2d at 195 (Harrison, C.J., dissenting).

Although I am not entirely sure what legal point the Chief Justice is making in this regard, I welcome his comments because they provide the opportunity for a discussion of what occurs in this court when a petition for rehearing is filed.

Once this court issues an opinion, our rules of appellate procedure provide the nonprevailing party with the opportunity for rehearing in order to apprise the court of points the party believes were “overlooked or misapprehended.” 134 Ill. 2d R. 367(b). “The right to apply for a rehearing is not given by the statute, but is a matter of grace or favor, growing largely out of the willingness of the court to correct any inadvertent error.” Vickers v. Tyndall, 168 Ill. 616, 617 (1897). This rule exists so that the court can correct errors “into which the court may have inadvertently fallen in deciding the case as originally presented.” Matthews v. Granger, 196 Ill. 164, 170 (1902). This court has previously noted that the filing of a petition for rehearing does not alter the effective date of the judgment unless the court allows the petition, in which case the effective date of judgment is the date that judgment is entered on rehearing. See PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291 (1981); Glasser v. Essaness Theatres Corp., 346 Ill. App. 72 (1952) (noting that when a petition for rehearing is filed, the judgment of the reviewing court does not become final until the petition is denied). Thus, once defendants filed petitions for rehearing in this case, the original July 1, 1999, decision was not a final one.

As an initial matter, this court never officially denied defendants’ petitions for rehearing in this case. Once the petitions were filed and an initial vote was taken, two justices, myself included, voted to allow rehearing. In my view, rehearing was warranted because of several points raised by defendants in their petitions. I then informed my colleagues that I intended to file a dissenting opinion to the denial of rehearing. A majority of the court voted to postpone the announcement of the . denial of rehearing pending the completion of my dissent. Once I completed that dissent, I, in accordance with court custom, circulated it amongst my colleagues. Subsequently, two other members of the court voted to allow rehearing, thereby providing the four votes needed for rehearing to be granted. An official order to that effect was entered on January 31, 2000.

Certainly, a justice is entitled to the view that the petitions for rehearing that were filed in this case presented no new issues. I did not share in that view, however. Rather, I believed that the petitions presented this court with several points that warranted a response from plaintiff and merited reconsideration in accordance with Rule 367(b). Given the importance of stare decisis, I believed it was better to reconsider these matters now, before our opinion became final, than to use a later case to limit or overrule the previous decision, particularly because this case concerned the application of one of the rules of this court. I must stress that the civil appeals rules involved in this case and the issues raised pertaining to them are of importance not only to the parties in this appeal, but for all civil litigants in this state. If granting rehearing under these circumstances is somehow improper or unjust, then I must ask to what end does a rehearing petition serve? Rather than cast the court’s actions in this case in a bad light, as the Chief Justice’s dissent clearly seeks to do, our efforts and attention to detail in this matter should serve to reassure both bench and bar that (i) the filing of a petition for rehearing is not a pro forma exercise in futility and (ii) the court takes seriously the rehearing period as well as the issues sought to be heard therein.

I will not use this special concurrence to recite the points defendants made on rehearing which prompted my vote to rehear the case. I will note, however, two points that I believed warranted reconsideration. First, in our July 1, 1999, opinion, we noted that this case was distinguishable from Fultz v. Haugan, 49 Ill. 2d 131 (1971), because plaintiff’s motion for leave to amend was filed “in tandem” with the motion for reconsideration. Thus, by filing an additional motion, the nonprevailing litigant causes the period between the entry of the appealable order and the filing of the notice of appeal to potentially become prolonged. As noted by defendants in their petitions for rehearing, such a practice undercuts the salutary purposes served by Rule 303(d), which specifically provides nonprevailing litigants with an extension of time in which to file an appeal. See 155 Ill. 2d R. 303(d); see also Ill. Ann. Stat., ch. 110A, par. 303, Historical & Practice Notes, at 91-92 (Smith-Hurd 1985) (noting that rule was promulgated because the “delay in the finality of judgments was more harmful than could be justified”). Therefore, our previous ruling in this case created tension within Rule 303 which justified reconsideration.

Secondly, I strongly believed that the concerns raised by defendants in their petitions warranted our reconsideration of the following language contained in the court’s original opinion:

“Although this rule [303(a)] utilizes language which makes its requirements appear mandatory, our court has recently recognized that the rule’s requirements may be relaxed. In an appropriate case, the appellate court may entertain an appeal even where the appellant has failed to comply with Rule 303. In re Marriage of Skahan, 178 Ill. 2d 577 (1998).” Slip op. at 2.

The Chief Justice again cites this very language today. 193 Ill. 2d at 197 (Harrison, C.J., dissenting). I must point out that Skahan is not an opinion of this court. Rather, it is a supervisory order entered upon the denial of a petition for leave to appeal. Upon further reflection, I do not believe that this court should utilize our supervisory orders in this manner because they are not binding authority. This court has never before, elevated these orders to the level of a published decision, and I believe it profoundly unwise to do so now. Supervisory orders do not provide bench or bar with a clear exposition of the facts which led this court to enter the order in the first instance. Plaintiff in this case argued for, and originally won, a construction of Rule 303(a) which was somewhat at odds with the plain, mandatory language of the rule. After considering this matter further, I preferred to consider the arguments raised on rehearing against the backdrop of the published precedent of this court.

In closing, I note that a “dissent should be impassive in tone rather than angry.” People v. Bull, 185 Ill. 2d 179, 219 (1998), quoting R. Aldisert, Opinion Writing, § 11.5, at 170 (1990). The Chief Justice, however, intertwines his dissent with both stridence and derision. Unfortunately, this type of rhetoric serves only to create and foster an environment where incivility becomes the rule, not the exception, in our courtrooms. I repeat Justice Miller’s eloquent comment contained in his concurrence in People v. Bull, 185 Ill. 2d 179, 222 (1998), in discussing this same justice’s remarks in dissent on that occasion, “[w]hen rancor eclipses reason, the quality of the debate is diminished, the bonds of collegiality are strained, and the judicial process is demeaned.”